Gurpreet Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1991/2019

[2024] HKCFI 2453

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1991 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

The applicant     

3.The applicant is a national of India, aged 35.  He came to Hong Kong as a visitor.  He overstayed since 28 October 2011.  He surrendered to the Immigration Department and raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his paternal uncle and his son because of a land dispute.

4.According to the applicant, his father had conveyed a piece of land to him and his brother.  His land was adjacent to another piece of land of his paternal uncle, who intended to take over his piece of land as well.  His uncle, together with his son, had gone to his land and demanded him to hand over his land to them.  He refused whereupon they hit him with bare hands. Between the period of 2006 and 2011, they had been to his land and house where they beat him up several times.  They had pistols with them.  On one occasion his cousin Sandeep Singh shot at him twice but missed.  He escaped and lived in other places.  Finally, he took his father’s advice to leave India.  Details of the applicant’s story are set out in paragraph 6 of the Director’s Notice of Decision dated 30 April 2019 (“the Director’s Decision”).

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

(a)     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(b)     risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(c)     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(d)     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) his uncle and cousin did not have the intention of killing him; (ii) there was no evidence that the state was involved; (iii) state protection would be available to him; and (iv) internal relocation was a viable option.

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  The applicant requested the Board to assess his appeal without a hearing because he had already provided all the information for his appeal.  The Board acceded to his request.

8.Having considered the evidence and materials available before it, the Board found that his evidence was not believable, and even if believable, state protection would be available and internal relocation would be viable.  In the Board’s Decision, the Board had given the following reasons in support of the above:

(1)     his uncle intended to dispossess his brother’s land, but nothing happened to his brother [24];

(2)     it is unbelievable that his cousin would have shot him twice at his head at close distance and missed [25];

(3)     even if his cousin missed shooting him, it is unbelievable that his cousin did not chase him if he wanted to hill him [26];

(4)     the applicant has given inconsistent evidence in relation to the same incident [31];

(5)     internal relocation is a viable option for him [34]-[38]; and

(6)     there is no evidence to show that the Indian government was involved or acquiesced in the acts of his enemies and state protection would be available [44].

Application for leave to apply for judicial review of the Board’s Decision

9.The applicant has filed Form 86 dated 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

10.In his affidavit in support of his application, the applicant attached a statement of grounds, which I shall summarize as below, insofar as the Board is concerned.

(1)     The Board failed to take into consideration his right to life.

(2)     The adjudicator was unreasonable to place too much reliance on the Country of Origin Information, but failed to take his personal background and experience into account.

(3)     The adjudicator was procedurally unfair when assessing whether to accept or not to accept his explanations and unreasonably required him to respond to questions that he was not in a position to offer any response.

(4)     The adjudicator failed to take into account the nexus of political parties and official corruption in his country.

DISCUSSION

11.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

14.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.

15.Those grounds under paragraph 10 are obvious irrelevant to the applicant’s case as he did not appear before the Board.  At most, they are his opinions without any evidence in support.  In effect, there is no valid reason from the applicant to challenge the Board’s Decision.

16.There is no reason that the Court should interfere with the Board’s finding of the facts.

17.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

DISPOSITION

18.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

The applicant was unrepresented.